The Price of a Stolen Childhood

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Source: by Emily Bazelon, NYT Magazine

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Marsh researched legal remedies for Amy. Combing through his casebooks, he found a provision in the Violence Against Women Act that he had never heard of before: it gave the victims of sex crimes, including child pornography, the right to restitution or compensation for the “full amount” of their losses. Enumerating what those losses could be, Congress listed psychiatric care, lost income and legal costs and concluded, “The issuance of a restitution order under this section is mandatory.”

The provision for restitution, enacted in 1994, had yet to be invoked in a case of child-pornography possession. The basis for such a claim wasn’t necessarily self-evident: how could Amy prove that her ongoing trauma was the fault of any one man who looked at her pictures, instead of her uncle, who abused her and made the pornography?

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In October, the Fifth Circuit ruled in Amy’s favor, in a 10 to 5 decision. The court also accepted the theory of joint and several liability, finding that this means of allocating shared responsibility can ensure “that Amy receives the full amount of her losses, to the extent possible, while also ensuring that no defendant bears more responsibility than is required for full restitution.” Victims and the Justice Department can keep track of how much has been recovered, and courts can set a payment schedule based on an individual defendant’s ability to pay. “Ultimately, while the imposition of full restitution may appear harsh, it is not grossly disproportionate to the crime of receiving and possessing child pornography,” Judge Garza wrote for the court. “Defendants collectively create the demand that fuels the creation of the abusive images.” Garza sent Amy’s award of $529,000 back to the lower court because it did not provide for restitution “in full” — in other words, it was too small.

The Fifth Circuit’s decision creates a clear split among the appeals courts over how to interpret Congress’ provision of restitution for sex-crime victims — a split that only the Supreme Court can resolve. Cassell and Marsh have asked the justices to do that, and the court could hear a restitution case as early as next fall.